18:0340(44)CA - Missouri NG, Office of the Adjutant General, Jefferson City, MO and NAGE Locals R14-68, 71, 73 and 97 -- 1985 FLRAdec CA

 18 FLRA No. 44
 
 MISSOURI NATIONAL GUARD 
 OFFICE OF THE ADJUTANT GENERAL 
 JEFFERSON CITY, MISSOURI 
 Respondent 
 
 and 
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCALS R14-68, 71, 73 and 97 
 Charging Party
 
                                            Case No. 7-CA-30494
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record, including the stipulation of
 facts, accompanying exhibits, the parties' contentions, and an amicus
 curiae brief filed by the Office of Personnel Management (OPM), /1/ the
 Authority finds:
 
    The complaint alleges that the Missouri National Guard, Office of the
 Adjutant General, Jefferson City, Missouri (the Respondent) violated
 section 7116(a)(1) and (5) of the Federal Service Labor-Management
 Relations Statute (the Statute) /2/ by refusing to negotiate over a
 flexitime plan as requested by the National Association of Government
 Employees, Locals R14-68, 71, 73 and 97.
 
    The stipulated record reveals that each of the Unions, at all times
 material herein, has been certified as the exclusive representative for
 a bargaining unit of the Respondent's employees, and that collectively
 they comprise the Missouri Council of Locals, National Association of
 Government Employees (the Council).  At all times material herein, the
 Council and the Respondent have been parties to a collective bargaining
 agreement, which became effective on November 28, 1979.
 
    This agreement, pursuant to Article 23, Section 3, was automatically
 renewed in November 1982 for another three year term.  The Council
 sought to negotiate a new contract, and/or amend the current agreement,
 but its request to do so was untimely according to the language in
 Article 23, Section 3, and therefore was rejected by the Respondent.
 Article 23, Section 2 of such agreement provides:
 
          By mutual consent of the Parties, this Agreement may be
       reopened at any time during its duration, to add, delete or modify
       sections or articles, as may become necessary due to changes of
       existing regulations, policies, laws, or the Act, or the
       introduction and implementation of new policies, laws or Executive
       Orders.  To reopen, the Party wishing to do so will submit to the
       other Party, in writing, at least 30 days prior to the desired
       reopening date, its reasons for making the request, and an agenda
       for their disposal.
 
    On January 11, 1983, Robert B. Phillips, spokesperson for the
 Council, submitted to the Respondent a written request, pursuant to
 Article 23, Section 2, to reopen the agreement described above to permit
 the parties to negotiate concerning the Federal Employees Flexible and
 Compressed Work Schedules Act of 1982.  On February 16, 1983, the
 Respondent denied this request stating, in part, that "within the
 provisions of Article 23, Section 2 of the (contract), there (had) been
 no new law or change in existing law or policy which would permit or
 require reopening of the contract for the establishment of
 alternative/compressed work schedules for technicians in the Missouri
 National Guard." By letter dated June 21, 1983, Phillips, the Council's
 representative, requested the Respondent "to negotiate a flexitime plan
 under the FLRA's doctrine of mid-term negotiations." This request was
 not prompted by any actual or contemplated change by the Respondent in
 conditions of employment of the bargaining unit employees herein.  The
 Respondent by letter dated June 28, 1983, refused and continues to
 refuse to negotiate over any flexitime plan, including any arrangement
 whereby employees have some choice as to their starting and quitting
 times.  The parties' collective bargaining agreement contains no
 provisions for flexitime and the subject of flexitime was neither raised
 nor discussed during the negotiations leading to such agreement.
 
    The Respondent essentially asserts that the Statute does not require
 it to negotiate over union-initiated proposals during the life of a
 collective bargaining agreement between the parties absent a
 management-proposed change in unit employees' conditions of employment,
 and, since it has proposed absolutely no changes in this regard, it has
 no statutory obligation to engage in mid-contract negotiations as
 requested by the Council herein.  Further, it contends that even if a
 union has a statutory right to demand bargaining over union-initiated
 proposals as in the subject case, the Council, pursuant to certain
 provisions in the parties' contract, waived any right to demand
 bargaining on the matter herein.  On the other hand, the General Counsel
 and the Council argue, in their briefs, that the Statute entitles the
 Council to initiate mid-term negotiations over the subject of flexitime,
 and further that the Council did not clearly and unmistakably waive its
 right to mid-term negotiations as asserted by the Respondent.
 
    In Internal Revenue Service, 17 FLRA No. 103 (1985), where it was
 alleged that the agency therein violated the Statute by refusing to
 negotiate concerning proposals submitted by the union during the term of
 an existing collective bargaining agreement, which proposals were not
 related to any changes initiated by the agency, the Authority found that
 there was no statutory obligation to bargain over such union-initiated
 proposals and that the agency's failure to do so did not constitute a
 violation of the Statute.
 
    In the instant case, the record reveals that at all times material
 herein a collective bargaining agreement was in existence between the
 parties;  that the Council requested "mid-term negotiations" over a
 flexitime plan where there had been no change in unit employees'
 conditions of employment by the Respondent;  and that such request was
 not submitted in accordance with the reopener provision of the parties'
 agreement.  Therefore, the Authority concludes in these circumstances,
 and based upon the rationale contained in Internal Revenue Service,
 supra, that the Respondent was under no obligation to bargain as
 requested by the Council and that the Respondent's failure to do so did
 not constitute a violation of section 7116(a)(1) and (5) of the Statute
 as alleged.  Accordingly, the Authority shall order that the complaint
 be dismissed.  /3/
 
          IT IS ORDERED that the complaint in Case No. 7-CA-30494
 be, and it hereby is, dismissed.  
 
 Issued, Washington, D.C., June 6, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ OPM's request to file an amicus curiae brief, pursuant to section
 2429.9 of the Authority's Rules and Regulations, is hereby granted and
 the brief considered herein.
 
 
    /2/ Section 7116(a)(1) and (5) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                  * * * *
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /3/ In view of the Authority's finding herein, it is unnecessary to
 address the Respondent's contention that the Council waived its right to
 negotiate a flexitime plan.